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Court Raises Bar for Least-Intrusive Means Test

August 20, 2014

By J. Sharpe Smith —

August 19, 2014 — The U.S. Court of Appeals 9th Circuit upheld most of the district court’s summary judgment against American Tower in its lawsuit with the City of San Diego for rejecting its conditional-use permit requests for three existing towers in San Diego. In California, the decision will have a broader effect on over-the-counter approvals of collocations, as well as on least-intrusive means analysis of new sites.

The court case is the latest skirmish between a cell tower developer and a municipality and reflects tension between the wireless industry’s need for a more streamlined zoning system and the loss of control that the cities have felt since Congress passed Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.

“As Congress has been working to restrict local authority, the circuit courts have been working in the opposite direction, buttressing local authority under the Telecommunications Act of 1996,” said Robert May, associate counsel, Telecom Law Firm, a municipal wireless consultant.

Perhaps the most important legal point made in the decision was that the permit denial did not constitute an effective prohibition of service because American Tower did not demonstrate that its proposals were the least-intrusive means of filling a significant gap in coverage.

The Second and Third Circuits have defined “least-intrusive means” as the wireless site location and design that most closely conforms to the local values and still fills in a significant gap in service. However, the First and Seventh Circuits hold that all that is needed is a showing that there are no alternative sites available to provide the needed coverage. Municipalities have attempted to use the various versions of least-intrusive-means language as a litmus test to judge whether a cell tower is appropriate for a certain location.

The court upped the ante saying that American Tower needed to actually provide the municipality with evidence allowing for a “meaningful” comparison of alternative sites and designs. Additionally, the City does not have to rely American Towers’ conclusions regarding the options but may judge for itself based on the evidence whether a zoning denial is in effect a prohibition of service.

“Even though it was about renewing the existing conditional-use permits, this decision impacts new sites the most because it affects the least-intrusive-means analysis. It makes it very clear that the wireless applicant bears the burden to show the government with evidence that is sufficient in the government’s reasonable determination that the site passes the least-intrusive means test for a significant gap in coverage,” May said.

Court Case Illuminates Problems of Time-limited Permits

From the outset of American Tower’s litigation, PCIA — The Wireless Infrastructure Association has maintained that time-limited permits significantly hinder network planning and management.

“As this case illustrates, the problem with time-limited permits is not just about slowing the build-out and upgrade of wireless networks, but also maintaining the existing infrastructure, built over a decade ago, that already supports wireless networks and serves consumers, businesses and public safety,” the association said in a prepared release. “We’re concerned that the 9th Circuit’s decision could undermine broadband deployment and California’s capacity to buttress and maintain a highly successful innovation economy.”

Court Rules in Favor of Public Hearings

American Tower V. City of San Diego also addresses the issue of whether or not a public hearing should be required under California state law for a change to an existing antenna structure. Wireless advocates hold that legislative language in Section 6409(a) that “a State or local government may not deny, and shall approve, any eligible facilities request” precludes the need for a public hearing.

The court states that the automatic approval of American Tower’s applications without a hearing would deprive landowners of their property rights and would violate due process.

“[American Tower] claims that the automatic approval of its conditional users permit applications would not constitute a substantial or significant deprivation … because the facilities are already in existence, their continued presence cannot possibly deprive adjacent landowners of any property rights,” the court wrote. “This argument ignores [American Tower’s] obligation to return the sites to their original condition now that the original conditional-use permits have expired by their terms.

“Dozens of antennas perched on hundreds of feet of towers alongside hundreds of square feet of equipment shelters may not seem like a cognizable impact to [American Tower], but we believe most landowners would beg to differ,” the court added.